James Fitzjames Stephen on duress — moral blame or legal coercion as a determinate?

The defence of duress has always been a controversial one. Why should an actor of sound mind be excused for criminal conduct which they consciously (if not entirely voluntarily) undertook, whilst fully understanding the wrongfulness of their act? The answer is simple — the cry “I couldn’t help it … appeals … urgently to our moral institutions”1. As Joshua Dressler points out, people are likely to view duressed actors “as both victims and villains. They feel compassion for the coerced actor (imagine a mother who is told that her beloved child will be killed unless she does as she is ordered) and yet also, perhaps some contempt for her decision to accede to the threat by harming an innocent person (imagine that she is ordered to maim another parent’s little child).”2

The compassion felt for duressed actors is a recognition of the intolerable pressure they are placed under, having to choose between evils. But the extent of compassion that the criminal law offers can vary from generous to scant. The important issue, which this article will explore, is where the line should be drawn to reflect proper moral blameworthiness.

We can conveniently start with the extremes. James Fitzjames Stephen, a Victorian jurist, took the following view:

“Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats of injury to life, liberty, and property if people do commit crimes. Are such threats to be withdrawn as soon as they are encountered by opposing threats? The law says to a man intending to commit murder, if you do it I will hang you. Is the law to withdraw its threat if some one else says, If you do not do it I will shoot you? Surely it is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary. It is, of course, a misfortune for a man that he should be placed between two fires, but it should be a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening them with death or violence if they refused to execute their commands. If impunity could be so secured a wide door would be opened to collusion, and encouragement would be given to associations of malefactors, secret or otherwise. No doubt the moral guilt of a person who commits a crime under compulsion is less than that of a person who commits it freely, but any effect which is thought proper may be given to this circumstance by a proportional mitigation of the offender’s punishment.”3

His argument is unconvincing on multiple levels, which will be considered in turn. Most interestingly though, despite the harshness of the reasoning, compassion for the duressed is still present. Stephen acknowledges the great “misfortune for a man that he should be placed between two fires” — but then he takes a far more utilitarian approach to the entire problem. The really important consideration, on his view, is as to the wellbeing of society at large — that is the responsibility of the criminal law. But that analysis sits in direct tension with the problem I set out earlier — namely, where to draw the line to reflect moral blameworthiness. For Stephen, moral blameworthiness is a tangential issue, to be dealt with “by a proportional mitigation of the offender’s punishment”. But the better view is that moral blameworthiness is integral to the operation of the criminal law. Moreover, it should be the chief aim and function to make the assignment of moral blame for crime properly, with fair labelling (and not just fair sentencing) to boot. As we turn to consider the right approach to take in regards to duress we should view the criminal law from this perspective, as opposed to viewing it as a blind system of coercion which functions as “a collection of threats”. Viewing the criminal law itself as a system of duress is both unpalatable, but also cynically ignores reality. People are, by and large, kept from committing serious crimes not by the fear of criminal sanction, but by their own sense of right and wrong. In support of that, I would note the direction of cause and effect between people’s own subjective morals and the content of the criminal law. General societal morals are precisely what shape and govern the development of the law, so it comes as a direct consequence that the average person’s own moral compass will accord with that as set out by the criminal law — their morals actually indirectly define the law. Punitive deterrence is undeniably a large component feature of the law, but should not be viewed as the nucleus off of which all developments should be made. The objective of assigning moral blameworthiness is far better suited to occupy that role.

The above point — that moral blameworthiness is the appropriate determinate as to where the “line” in the defence of duress should be drawn — is perhaps more significant than the precise “drawing” of it. Nonetheless, looking at the approach taken by the courts in practice proves the point in real terms.

The starting point is that D was compelled to act by some threat or circumstance, which constituted a risk of serious injury or death, emanating from beyond their control. The first qualification to the defence — that the duress emanates from beyond D’s control — forcefully demonstrates the centrality of moral blame in bounding the defence. And the test is equally forceful — per Lord Bingham in Hasan, the defence is barred when D “voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates”4. Effectively, D has taken on a degree of moral blame by associating with criminals in the first place, and hence cannot leverage the defence. This demonstrates that the defence is founded in moral blameworthiness. Furthermore, the law as it stands clearly does not give encouragement to “associations of malefactors”, as Stephen worried a broader defence of duress might.

Finally — and in keeping with all of the above — D’s perception of the duress (be it a threat of circumstance), does not need to be objectively correct. D’s perception of the threat must only be reasonable (even if mistaken) (Hasan)5. Likewise, their reaction must only accord with that of a reasonable and sober person. As usual, most of the characteristics of D are not imparted onto the reasonable person — save for a few exceptions, including concrete psychiatric evidence (Bowen)6. Once again it is clear that the focus is not on utilitarian coercion, but rather on moral blame distilled from a societal level. The two limb test, starting with a wide margin for D’s genuine and reasonable perceptions, then uses societal standards (the reasonable person) to judge the moral blame.

None of the above is new or controversial — but looking to aspects of the criminal law, and especially weighing up the way the law has developed against how it might have (and whether that is desirable) is always a useful endeavour. The law on duress as it exists now — particularly when contrasted against Stephen’s vision — should, in this author’s view, serve as a reminder of the positive central role which moral blame should play in shaping the criminal law.

Hyman Gross, A Theory of Criminal Justice 276 (1979).

J. Dressler, “Duress”, in J. Deigh and D. Dolinko (eds.), The Oxford Handbook of the Philosophy of Criminal Law, 269.

James Fitzjames Stephen, History of the Criminal Law of England, Vol. 2 (1883), 107-8.